Frank Hecker

Seven answers: LGBTQIA equality

20 minute read

Estimated support for marriage equality in each of the
lower 48 states in 1994-1996, 2004, 2010, and 2017. The sizes of the
circles are proportional to each state’s population in the 2010
census. (Click for higher-resolution version.) For data sources and
plotting code see the section “Further exploration”. The estimates use
different methodologies and can’t be directly compared, but do show
general trends.

tl;dr: The struggle for marriage equality provides guidance for how
the longer-term campaign for LGBTQIA equality might go.

In the concluding post in my series outlining my answers to the
“Seven Questions” posed by Jason Booms, I address Jason’s seven
and final question:

Many LGBTQIA Americans have expressed concerns that the current
Administration (and those who view the world similarly) are
dedicated to rolling back recent legal protections fought for, and
recognized, in this country. What steps can and should be taken to
safeguard the rights of LGBTQIA citizens to participate fully in the
“pursuit of happiness” stated in our Declaration of Independence?

First, to repeat my previous disclaimer: questions like this should
first and foremost be addressed by people who are most directly
affected by the issues under discussion, namely LGBTQIA1
people. I’m writing here not because I have any special knowledge of
or connection to these issues, but as one voter among many who will be
asked to weigh candidates’ positions.

Minority rights and majority opinions

Having said that, to discern how the rights of LGBTQIA people might be
best secured in the future we can look to the past. In particular, the
movement for marriage equality in the U.S. was remarkably successful
in achieving its aims, and over a relatively short time period at
that.

As shown in the graphs above, as recently as 2004 no state had a
majority in support of marriage equality, with support in most states
below 30%. Fast-forwarding to 2017, only a few states have less than
majority support for marriage equality, with many states having a
solid majority in favor (60% or greater) and a few a supermajority
(70% or greater).2 In total there were 26 states with a solid
majority or supermajority of support. These states represented almost
two-thirds of the U.S. population.

It’s worth noting that the shift from minority to majority support
appears to have occurred sometime in 2012 or 2013. That was the same
period in which (after a long string of defeats) the movement for
marriage equality achieved its first successes at the ballot box, with
referendum victories in November 2012 affirming marriage equality
legislation in Maine, Maryland, and Washington, and rejecting a
constitutional amendment to ban same-sex marriage in Minnesota.

It’s a commonplace saying that “we can’t put protection of civil
rights to a majority vote” (and in fact Julia McCready said just
that a few months ago). This is indeed true as a ideal. However,
in practice exercising one’s rights requires a majority willing to
support or at least countenance that, whether that be directly via
referendums, indirectly via the actions of elected legislators, or
even more indirectly by society’s acceptance of decisions by unelected
judges.

I don’t think it’s a coincidence that the movement for marriage
equality picked up momentum after the electoral victories of November
2012 made it clear that there was an emerging majority of Americans
willing to vote in support of LGBTQIA people.

So, the first tentative thought I have is this: There are bound to be
elections in which LGBTQIA rights become an issue, directly,
indirectly, or sometimes both. For example, recall past political
campaigns when opponents of LGBTQIA rights sought to use referendums
on marriage equality and related issues to increase the turnout of
voters likely to support socially conservative candidates.

Given that, it’s arguably counterproductive to focus primarily on
securing favorable judicial rulings or administrative
regulations—rulings or regulations that can be overturned or
rescinded when new judges and new administrations come on the scene.
If there are elections that need to be won, whether that’s to elect
supporters of LGBTQIA rights or to win straight-up “yes/no”
referendums on LGBTQIA questions, the focus will need to be on
securing the majority support needed to win them.

When marriage equality supporters were successful in winning such
elections, as in Maine, Maryland, Minnesota, and Washington, it made
it clear to people in other states, to legislators, and to judges that
support of marriage equality was not a fringe opinion that could be
ignored. I think this is generalizable to LGBTQIA rights in general.

Of course, the key here is actually winning such elections—but
before I discuss that topic, a brief detour into a larger question:
what is or should be the goal of the fight for LGBTQIA rights?

Reform vs. revolution

There are LGBTQIA activists who believe that the focus on marriage
equality was a strategic mistake, an unfortunate distraction from the
real problems facing the LGBTQIA community. For example, rather than
focusing on marriage as a way to secure health care for LGBTQIA
couples, they believe energy would have been better spent on lobbying
for a universal health care scheme not tied to marriage or employment.

From their point of view marriage is simply “a tool of social control
used by governments to regulate sexuality and family formation by
establishing a favored form and rewarding it” (as Dean Spade and Craig
Willse claim), and marriage equality a cause favored by a “few wealthy
foundations and [the] donors who fund them …—the gay 1%” that does
little to address the true needs of the “queer and trans 99%-ers”.

This conflict regarding goals echoes the historical split among gay
rights activists between “liberationists” and “assimiliationists”,
which in turn echoes the age-old conflict between revolutionaries and
reformers:

Is working to improve and reshape existing institutions a reasonable
and realistic approach to effecting desired social changes, or is it
simply a form of “respectability politics” in which a favored few gain
access to power structures by accepting society’s norms, leaving more
marginalized groups outside in the cold?

As is probably apparent from my earlier posts in this series, I’m a
reformer at heart. Nevertheless I think the challenge issued by the
revolutionaries and liberationists deserves an answer. Here is mine:

First, many of the criticisms of LGBTQIA opponents of marriage
equality are on point: health care benefits should indeed be universal
and not tied to marriage, there is a need to recognize alternative
family arrangements in cases where marriage is not suitable (for
example, with a caregiver caring for a friend), and so on. They are
also correct that marriage equality is fundamentally a socially
conservative change—a point also made by marriage equality advocate
Andrew Sullivan.

However, I don’t believe that means that the marriage equality
movement was misguided. It’s possible to believe, for example, that
universal health care is a desired goal, and to work toward that goal,
while at the same time believing that locking LGBTQIA couples and
families out of existing health care arrangements is an injustice that
should be corrected. If we still don’t have a workable universal
health care system (and we don’t), I don’t believe the reason is that
LGBTQIA activists got distracted.

Second, even though marriage equality privileges a certain type of
social relationship, namely a monogamous partnership between two
people, it does make legal recognition and (by implication) social
endorsement of that relationship open to everyone, regardless of the
sexual orientation, gender identity, or gender presentation of the two
individuals entering into it.

Suppose civil unions had been instituted as a parallel structure to
civil marriage, and consider the situation of transgender people in
particular. Think of the gatekeeping and insults to personal dignity
that would have occurred in determining who would be entitled to “real
marriage” instead of being relegated to the perceived second-class
status of civil unions. In this sense marriage equality was a more
radical change than many might credit.

Finally, whatever the factors driving sexual orientation and gender
identity, they seem to operate relatively randomly across the entire
population, so that we’d expect LGBTQIA people to have roughly the
same range of personalities and political predispositions as anyone
else. In other words, the phrase “gay Republican” is not an oxymoron,
and the support for marriage equality from both progressives and
conservatives is not that surprising.

Although the marriage equality movement was in large part funded by
rich white gay men, and one of its most visible symbols (Edith Windsor
of United States v. Windsor) was a rich white lesbian, I don’t
believe that means that marriage equality was simply by elites and for
elites. I suspect that there were many ordinary LGBTQIA couples,
perhaps even the majority, who were not interested in progressive
political activism but simply wanted to be married. For them the
“conservatism” of marriage equality was not a bug but a feature.

My conclusion: the successful fight for marriage equality was a major
step forward in according LGBTQIA people a greater level of respect
and furthering their inclusion in society. I think the most fruitful
way forward will be to work for incremental reforms that can
potentially benefit all people (for example, universal health care)
and at the same time work to make sure that LGBTQIA people can benefit
from those reforms to the same extent as anyone else.

But in the end I think it will all come down to winning elections, so
that’s the topic I turn to next.

Shared values and the persuadable middle

What accounted for the increase in support for marriage equality shown
in the graph above? Part of it may have been a matter of younger and
more socially liberal voters replacing an older cohort of
voters. Part of it may have been increased visibility of LGBTQIA
people in the national culture—the “Will and Grace effect”.

However, the political scientists I’ve read seem to agree that
something more was going on: that the changes seen in marriage
equality support were too rapid to be accounted for by voter
replacement and increased cultural visibility. Wins in referendums and
other elections ultimately require persuading individuals and changing
their minds, and somehow a significant number of people did in fact
change their minds.

There’s another way to look at it, one that’s perhaps more relevant to
today’s conflicts and controversies: For many years the tried and true
strategy of gay rights opponents was to demonize gay men and lesbians,
to portray them as unnatural and alien, and to peddle scare stories
about the terrible consequences that would ensue in the absence of
laws and social norms that discriminated against them—essentially
the same playbook we see used today against transgender people.

That playbook provided to be very effective, as gay rights opponents
racked up a series of electoral victories through the 1990s and 2000s.
Demonization and scare stories were working very well—and then in
2012 they stopped working, as voters in multiple states ignored the
fearmongering and decided to cast their votes for marriage
equality. Why was that?

It’s always dangerous to single out one factor in victory or defeat,
but based on my reading it appears that the answer was in marriage
equality campaigns shifting their messaging: They moved (and felt they
needed to move) from “previous messaging which focused on the ‘rights
and benefits’ of marriage and on the notion of equality and civil
rights” to “[communicating] that marriage mattered to gay and lesbian
couples for the same reasons that it mattered to straight couples”.

That’s the conclusion that Freedom to Marry and other groups fighting
for marriage equality came to after suffering defeat in California’s
Proposition 8 referendum. (The quotes above are from the retrospective
look at the struggle on the Freedom to Marry website.)

After conducting public opinion polls, focus groups, and other
research, these groups formulated a strategy that stressed universal
values like love and commitment, appealed to people’s sense of
fairness (e.g., the Golden Rule), sought to engage a conflicted but
persuadable middle group of voters in conversations intended to answer
their questions and open their minds, and used as messengers people
from the voters’ own communities, ethnic groups, and political
parties.

An early version of that strategy was tested in the Proposition 8
fight in 2008, using an A/B test in two different California areas,
and proved successful. More research was done in 2010, a complete
strategy created and documented in 2011, and tactics rolled out
through the 2012 ballot challenges and beyond. One particularly
interesting (and labor-intensive) strategy was to have canvassers
engage conflicted voters in in-depth conversations about what marriage
meant to them personally.

It’s hard in hindsight to say exactly how much of an effect the
changed strategy and tactics had. However there’s no question that
2012 marked a significant turning point in the fight for marriage
equality, and after that year the momentum gathered and eventually
proved unstoppable. If the new strategy wasn’t the whole story, it was
certainly a key part of it.

Estimated support in each of the lower 48 states in 2015
for inclusion of transgender people in non-discrimination
policies. The sizes of the circles are proportional to each state’s
population in the 2010 census. (Click for higher-resolution version.)
For data sources and plotting code see the section “Further
exploration”.

New struggle, same strategy?

Now that marriage equality has been achieved the fight for LGBTQIA
rights has moved to other issues, including in particular enacting
non-discrimination laws of various types. From the 1990s on gay rights
groups tried to have Congress pass an Employment Non-Discrimination
Act (ENDA). They had some partial victories, but success eluded them.

Given the current administration and makeup of the House and Senate,
it’s unlikely we’ll see anything like ENDA or its successor
legislation, the Equality Act, enacted at the Federal level in the
near term. Given the Supreme Court decision in Masterpiece Cakeshop
v. Colorado Civil Rights Commission, it’s also unlikely we’ll see
Federal court decisions that mandate sweeping non-discrimination
provisions. The fight for non-discrimination legislation will thus
move to the states, just as it did with marriage equality after the
passage of the Defense of Marriage Act.

One of the issues that derailed passage of ENDA in the 2000s was
whether or not to include protections for transgender people. Now that
the Supreme Court has ruled in Obergefell v. Hodges and majority
support for marriage equality has solidified, issues around
transgender people, including non-discrimination laws relating to
employment and public accomodations, have become the next flashpoint
for political conflict.

Here there is good news and bad news. The good news is that inclusion
of transgender people in non-discrimination laws has broad-based
support across the U.S., with solid majorities (60% or greater) in all
states and supermajorities (70% or greater) in almost all of them—a
very different situation than that that faced marriage equality
supporters after DOMA. The 45 states with supermajority support
represent 95% of the U.S. population.

The bad news is that even supermajority support is not necessarily
sufficient to get non-discrimination laws enacted. Researcher Andrew
Flores and his colleagues found that public support in a given state
had to be at least 81% for there to be even a 50-50 chance of
including transgender individuals in non-discrimination policies.

(Why is this? There are various possible reasons, including the fact
that transgender people are a very small fraction of the population,
and hence have little political power on their own. Their wants and
needs in turn receive little political attention, especially in states
whose legislatures are dominated by conservative Republicans.)

As of 2015 that level of support was found in only 19 states
(representing about 43% of the U.S. population), and only 17 states
included transgender people in their non-discrimination policies.
(Maryland was in both categories, with an estimated 87% support for
transgender inclusion in non-discrimination policies3 and gender
identity as a category included in the Fairness for All Marylanders
Act of 2014.)

In order to repeat the success of the marriage equality movement, the
movement for LGBTQIA rights and transgender inclusion will need to
help elect state representatives supportive of inclusive
non-discrimination laws, whether they be Democrats or Republicans
willing to go against their party’s position (as many Republican
legislators did in the marriage equality fight). They’ll also need to
persuade the “conflicted middle” of voters when these issues go to
referendums, as some no doubt will.

I expect that the strategies and tactics used in these elections will
be based on those employed in the fight for marriage equality.

For example, the Movement Advancement Project, one of the groups that
worked with Freedom to Marry on marriage equality messaging, urges
supporters of non-discrimination policies to emphasize what they refer
to as “work values” (hard work, providing for oneself and one’s
family, etc.), “American values” (opportunity, freedom, and personal
responsibility), and “personal and faith values” (e.g., “treating
others like we want to be treated”). The overall message is that
everyone, including LGBTQIA people, should “have a fair opportunity to
earn a living, be safe, meet their responsibilities, and build a
better life”.

Research on other effective tactics has also continued. For example,
David Broockman and Joshua Kalla conducted an in-depth study
evaluating canvassing techniques, in which they claim that “a single
approximately 10-minute conversation encouraging actively taking the
perspective of others can markedly reduce [antitransgender] prejudice
for at least 3 months”.

In other research, Brian Harrison and Melissa Michelson studied the
effect of the choice of messenger on effective messaging around
LGBTQIA issues, concluding that people were most persuaded when the
person delivering the message had the same or similar in-group
identity, and having that message come from that person was somewhat
unexpected.

(One of the most prominent examples of this was Barack Obama’s public
declaration that he had switched from supporting civil unions to
endorsing full marriage equality. Among other things, this may have
increased marriage equality support among African Americans enough to
ensure victory in the 2012 Maryland referendum.)

Are the theories correct and the corresponding strategies and tactics
effective? One critical test will come in a few days, when
Massachusetts voters go to the polls to decide whether to keep or
repeal a recently-passed gender-identity non-discrimination
law. (Opponents of the Fairness for All Marylanders Act of 2014
attempted to force a similar referendum, but failed to get the
approximately 56,000 signatures needed to get a measure on the
ballot.)

Given that Massachusetts has among the highest levels of estimated
support for transgender inclusion in non-discrimination policies (as
high as Maryland’s4), a loss would be a critical blow to the
movement for LGBTQIA rights, fully as devastating as the Proposition 8
loss in California.

At present support for “yes” on Massachusetts Question 3 (retaining
the non-discrimination law) is polling above 70%, up from below 60%
several months ago. While it looks as if there will be a comfortable
margin for victory, it’s worth noting that these figures are
significantly lower than the estimates of support referenced above.

Two final thoughts: First, the strategies and tactics I’ve described
above—reaching out to voters who are conflicted but persuadable (and
ignoring those who are not), leveraging shared values and identities,
actively listening to people’s concerns, and so on—would be familar
to anyone who’s ever worked in sales and attended a class on effective
selling. This is “sales 101”, as they say.

While protests and calling out bigotry are effective in raising public
awareness and energizing activists and core supporters, different
techniques are needed to get to an electoral majority—even someone
who appears to be a bigot upon first impression may end up embarking
on a personal journey to become a supporter.

Second, I recognize that from the point of LGBTQIA people themselves,
especially transgender people, this is a time when their prospects
look dire. Demonizing them for political advantage still works, at
least among a key segment of the electorate, and so certain elected
officials, political candidates, and interest groups will continue to
do it until it stops working.

However I don’t think I’m being pollyannaish in having a measure of
qualified optimism about the longer-term prospects for the full
inclusion of LGBTQIA people, and transgender people in particular, in
American society. I think the LGBTQIA movement has “cracked the code”
on how to persuade voters (as the Freedom to Marry website put it),
has a core set of activists who gained valuable experience in
successfully organizing supporters and winning campaigns, and is
dealing with a public that is much more sympathetic to its cause than
it was even ten years ago.

But there’s no denying that the next few years are going to be tough,
especially for transgender people, and especially in states where
there’s a hostile governor and legislature and a level of public
support that falls below the very high threshold needed to overcome
those obstacles. They have my support.

This marks the conclusion of the promised “Seven Answers” posts. My
thanks go out to all of you who’ve read this and other posts in the
series. If time and energy permit I’ll post some final thoughts in the
next few weeks.

Further exploration

The best source for messaging around marriage equality is the website
for the advocacy organization Freedom To Marry. It now serves
as an archive of documents outlining the strategy they crafted with
other organizations to pursue victory in the minds of voters and in
the courts. Key documents include:

“Philanthropy’s Role in The Fight for Marriage Equality”, by
Benjamin Sockis, provides a high-level overview of the fight for
marriage equality, with a focus on philanthropic support (including
a “who’s who” of private foundations and their wealthy donors) and
associated strategies and tactics.

Listen, We Need to Talk: How to Change Attitudes about LGBT
Rights, by Brian F. Harrison and Melissa R. Michelson,
describes various studies in which the authors sought to test their
theory of “Dissonant Identity Priming”, i.e., that people change
their minds more when encountering someone in their identity
in-group presenting an unexpected position.

“LGBTQIA” (lesbian, gay, bisexual, transgender, queer/questioning, intersex, asexual/aromantic) is a somewhat unwieldy acronym that many people use it as a more inclusive alternative to “LGBT”, “LGBT+”, “LGBTQ”, etc. Because that’s the term Jason used in his original question I use it in this post as well, except when referring to the historical gay rights movement (where I think it would be anachronistic). ↩

The estimates used in creating the graphs have fairly large margins of error, especially for smaller states. Thus I wouldn’t consider a majority “solid” until the estimate is 60% or higher. ↩

The 87% figure is from the estimates of Flores, Herman, and Mallory. Other estimates from the Public Religion Research Institute (PRRI) claim 73% support in Maryland in 2015 for LGBT non-discrimination laws and 77% in 2017. ↩

Again this is based on the Flores estimates. The PRRI estimates have support in Massachusetts at 83% in 2015 and 80% in 2017. ↩